In Volume 35, Issue 4 of the IELR, I wrote a piece which focused on the Mediterranean migration crisis and the international legal implications of the European decision to suspend EUNAVFOR MED (the military operation established as a consequence of the April 2015 Libya migrant shipwrecks with the aim of neutralizing established refugee smuggling routes in the Mediterranean) naval patrols. As the article noted, there are serious concerns surrounding this program and its emphasis on returning migrants to Libyan ports, which have been deemed as “unsafe…to disembark migrants.” It would seem, then, that a suspension of this program would be a positive. However, in the aftermath of this suspension, European parties have shifted focus towards empowering the Libyan coast guard to intercept migrants and return them to Libya. This reduces liability under international law, but significantly increases risks to migrants.
Several recent events suggest that European governments remain committed to restricting immigrant access to Europe through policies which, while not technically illegal from an international perspective, create significant risks for migrants attempting to cross the Mediterranean.
On June 29th, Italian officials arrested Carola Rakete, the captain of a ship that rescued 40 migrants from the Mediterranean, after she docked at the southern island of Lampedusa. Italian officials had refused to grant the ship permission to dock for two days after it arrived, prompting Rakete to order the ship to shore at approximately 2 AM. The ship had previously refused to dock in Libya due to concerns about migrant safety. These concerns seem to be well founded in light of another recent event.
On July 3rd, an air raid in Tripoli killed 44 people and injured 130 when bombs hit a migrant detention center. According to a New York Times Investigation, the detention center was housed nearby to a weapons depot, making it a prime target. In the immediate aftermath of the attack, the United Nations envoy to Libya, Ghassan Salame, said that the attack “clearly could constitute a war crime.” Despite this, and despite UN Secretary-General Antonio Guterres calling the bombing “outrageous” and demanding an independent investigation, the UN Security Council has, to date, failed to condemn the attack or take action.
For its part, the Libyan National Army (LNA) demanding that the UN open an investigation after The Government of National Accord (GNA) stated that: “This crime came after the statements of the air force commander of Haftar’s Libyan National Army [LNA], Mohamed Manfour, and therefore it is he who bears its legal and moral responsibility.” A day later, on July 5th, the GNA changed its tone and claimed that the United Arab Emirates bombed the detention center using a U.S.-made F-16 fighter jet.
These emerging events suggest that international law is insufficient for addressing migrant insecurity in Libya and across the Mediterranean. Clearly, political uncertainty and sovereignty issues have prevented, and continue to prevent, the effective implementation of international legal standards within Libya. Beyond the boundaries of Libya, European countries have restricted migration and left migrants in an extremely dangerous situation. They have done this all while technically conforming to international law, using the specific phrasing and structure of those laws (this is more fully articulated in the previously mentioned IELR article) in a way that ultimately introduces further risk into the lives of already disadvantaged individuals.
Clearly, something must be done to adapt international legal standards to promote practices which will actually improve conditions for vulnerable populations.
 Evan Schleicher, The Mediterranean Migration Crisis: Highlighting the Gaps between International Law and Justice, 35 Int’l Enforcement L. Reporter, 141-144, (April 2019).